FCC Throws Flag at CBS's Halftime Play

By Frank Ahrens and Lisa de MoraesSeptember 23, 2004

Airing a glimpse of Janet Jackson's right breast during the Super Bowl could cost 20 TV stations owned by CBS $550,000 in indecency fines, the Federal Communications Commission finally announced yesterday. Those stations were singled out, the FCC explained, because they are part of a media conglomerate that also employs the heavily fined radio shock jock Howard Stern.

The five FCC commissioners unanimously determined that the halftime performance, in which pop star Justin Timberlake ripped off part of Jackson's costume to briefly reveal her right breast, was "in apparent violation of the broadcast indecency standard."

But it proposed to slap the maximum fine allowable, $27,500, on only the 20 CBS-owned stations instead of every station that carried Jackson's performance, not only because Viacom-owned CBS was involved in the planning of the halftime show, which was produced by MTV (another Viacom property) but also because of "the history of indecency violations committed by Viacom's Infinity Broadcasting Corporation subsidiary."

Infinity, the nation's second largest radio chain, syndicates "The Howard Stern Show."

The commission says it received more than a half-million complaints about the halftime performance, which MTV.com had promised in advance would include "shocking moments." Jackson and Timberlake danced their way through the Timberlake tune "Rock Your Body" as he periodically grabbed at her buttocks. At the end of the number, he reached across her chest and pulled off the right cup of her bustier as, according to Nielsen estimates, about one in five American kids between the ages of 2 and 11 looked on.

"The song's lyrics leave little doubt where the show was going: 'Hurry up, cause you're taking too long . . . better have you naked by the end of this song.' Well, [Timberlake] certainly did and, judging by the complaints, it had its intended shocking effect -- and drew a penalty flag in the process," FCC Chairman Michael Powell said yesterday in a statement.

CBS said it was "extremely disappointed" with the ruling.

"While we regret that the incident occurred and have apologized to our viewers, we continue to believe that nothing in the Super Bowl broadcast violated indecency laws," the network said in a statement.

CBS also noted that its own investigation of the incident "proved that no one in our company had any advance knowledge about the incident." CBS has 30 days to either pay the fine or argue that it is unjustified, after which the FCC can order the payment.

A representative for Jackson did not return a call for comment. In an issue scheduled to hit newsstands next week, Genre magazine reports that Jackson calls the brouhaha over the Super Bowl incident "stupid," "dumb" and "contradictory," particularly given that prevalent TV commercials for alcohol and erectile dysfunction treatments are "very sexual." Jackson goes on to say: "I wish I wouldn't have apologized. You don't apologize for an accident."

To help prove its case that CBS is culpable, the FCC noted that Timberlake fondled the buttocks of British singer Kylie Minogue on a nationally televised awards show in that country last year, an event that, coupled with the racy content of his and Jackson's recordings, "should have given CBS cause for caution."

In testimony before Congress after what Timberlake called a "wardrobe malfunction" at the Super Bowl, then-CBS President Mel Karmazin and other broadcasters expressed frustration at the FCC's indecency rules, saying they were so vague they offered no guidance for programmers.

Powell insisted yesterday that "it is not possible to write a 'red book' of do's and don'ts," but he said he was offering broadcasters some of the guidance they said they needed.

"Nudity, while not necessarily indecent in itself, certainly should raise a red flag for a broadcaster contemplating its airing during the hours in which the law restricts indecency because children are likely in the audience," Powell wrote.

"If a programmer opts to air nude content, he places great weight in the hope that its purpose and context will keep the program from running afoul of the law."

The morning after the Super Bowl broadcast, Powell announced that he was "outraged" and he took the unusual step of ordering a "thorough and swift" investigation of the incident. Typically, the FCC initiates investigations after viewers or listeners complain about television or radio content. Investigations can take more than a year.

While TV news outfits played the breast-baring over and over in the days after the broadcast, Hollywood scrambled to react. The National Academy of Recording Arts & Sciences uninvited Jackson from introducing a tribute to Luther Vandross during CBS's telecast of the Grammy Awards. Producers of an ABC biopic of Lena Horne that was to have starred Jackson bowed out after Horne insisted Jackson be dropped, effectively killing the project. Networks instituted five- or 10-second delays on live trophy shows populated by unpredictable celebrities. NBC even ordered cut from its medical drama "ER," over the objection of executive producer John Wells, a quick shot of an old woman lying on an operating table because her breasts were exposed briefly.

Meanwhile, Congress answered Powell's request to raise the amount his agency can levy in indecency fines. Bills in each house of Congress would do that, with one version upping the amount to $500,000 with a cap of $3 million per day. Both bills have been added to Department of Defense authorizations.

Further, the FCC has begun issuing fines for each indecency infraction. In the past, a radio or television show containing a number of violations would receive one fine. In April, the FCC fined six Clear Channel stations for three violations during one Howard Stern broadcast in 2003.

There was little or no reaction to yesterday's announcement in the creative community, reported one Hollywood agent who refused to be identified. The chill, he said, occurred back in February. People writing series for broadcast television "are already aware there's no sexuality and you have to be careful about how you approach certain scenes, which gives cable even more advantage because they can push things to the limit. It's stunning.

"Every script that comes down through Standards & Practices is getting so worked over that the producers -- I wouldn't call them scared, but they're on guard."

The FCC's authority over indecency covers only over-the-air radio and television broadcasts; it has no authority over programs transmitted on cable or on satellite television or radio, though some in Congress are interested in extending the FCC's oversight.

Communications lawyer John G. Johnson of Washington's Paul, Hastings, Janofsky & Walker said CBS has an "arsenal of arguments" to counter the fine: chiefly, that the FCC linked the fine to indecency infractions by other Viacom companies.

"Fines should be for behavior, not for who you are," said Johnson, who represents radio and television companies before the FCC.

However, Howard Liberman, a communications lawyer with Washington's Drinker Biddle & Reath, said CBS should pay the fine and get the issue out of the news.

"It doesn't do much good for CBS to say they didn't know [Jackson and Timberlake] were going to do that, because it happened," said Liberman, who represents CBS-affiliated stations that are not among those the FCC proposes to fine.

Three of the five FCC commissioners expressed concerns about the ruling, saying the amount was too small and that it should have included affiliate stations, as well.

Democratic commissioner Jonathan S. Adelstein pointed out that CBS will barely feel the punishment, saying the amount represents "71/2 seconds of Super Bowl ad time." Thirty-second commercials sold for about $2 million during the Super Bowl.

While Adelstein's objection was the longest, commissioners Michael J. Copps, a Democrat, and Kevin J. Martin, a Republican, weighed in as well.

"The commission must be careful not to signal that we would excuse indecent broadcasts merely because a station did not control the production of the content," Copps said. "Some level of fine would have been appropriate for these stations."

Yesterday's enforcement action marks only the third time that the FCC has fined a television broadcaster for violating the agency's indecency standards. (The two others were fines against San Francisco's KRON and a Puerto Rican Telemundo station for separate broadcasts of sexual material.)

Some Super Bowl viewers complained about the entire halftime show, which also featured crotch-grabbing rapper Nelly. Other complaints focused on ads for erectile dysfunction drugs,, with one commercial warning about the dangers of "erections lasting longer than four hours."

Copps argued that yesterday's ruling "dismisses these complaints in a footnote with hardly any analysis or explanation." Martin concurred, saying the FCC enforcement bureau should have put the rest of the halftime show to the same decency tests.

But Powell, a former antitrust lawyer, said the FCC was right to stay away from judging the rest of the halftime show's content, cautioning, "There is always a substantial danger that a regulatory authority buoyed by an outraged public will overstep and fail to heel to the commands of the First Amendment."

Justin Timberlake and Janet Jackson in the now-notorious halftime show.FCC Chairman Michael Powell said nudity "certainly should raise a red flag" for broadcasters.